Cassation

Justice, the duration of smartphone seizure has no fixed limits

The prosecutor is unable to predict the timing of the computer data mining and analysis operation at the time of the request

by Giovanni Negri

13 January 2026

1' min read

Translated by AI

Versione italiana

Key points

The proportionality assessment

1' min read

Translated by AI

Versione italiana

No necessary chronological constraint for seizures of smartphones and devices in general. The Sixth Criminal Section, judgment 543, stated that the need to ensure the proportionality of the probative seizure of data contained in computer devices or telematic devices does not require that the exact term of its duration be indicated in the decree ordering it, or that the timeframe for the completion of the operations of extrapolation and analysis of computer data be fixed in a determined and mandatory manner. The public prosecutor, in fact, is not in a position to predict them from the moment of the request.

Indeed, there is a risk of excessively penalising initiatives aimed at the discovery of offences and, in any case, the excessive duration of the constraint on the instrument can also be challenged later by means of a request for restitution on the basis of Article 262 of the Code of Criminal Procedure.

The indication of a reasonable time limit for the duration of the seizure order (and of a foreseeable scansion of the operations) at the time of the adoption of the seizure decree leaves, in any event, without prejudice to the possibility for the public prosecutor to extend the time limit originally indicated and to modulate it progressively in accordance with the requirements of the concrete case.

The proportionality assessment

In any event, the Court of Cassation emphasises, in order to allow an adequate assessment of the proportionality of the precautionary measure, both at the outset and at the execution stage, it is necessary for the prosecutor to illustrate in the evidence seizure decree:

thereasons why it is necessary to order an all-inclusive extended seizure or, alternatively, the specific information to be searched;
the criteria that must govern the selection of the computerised material stored in the device, justifying the possible temporal indication of the data of interest in terms significantly different from the temporal perimeter of the provisional imputation;
the reasonable, but "only" reasonable and not mandatory, times within which such selection will be carried out, with the consequent return also of the computer copy of the irrelevant data.